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Court of AppealDismissedCivil Appeal (Application) No. 84 of 2015· [2017] KECA 302 (KLR)

Alfeen Mehdi Mohamed v Basil Feroz Mohamed & 223 others [2017] KECA 302 (KLR)

Court of Appeal of Kenya
21 September 2017
2,298 words in judgment
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The bottom line

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The Court of Appeal refused a Mombasa landowner permission to take her adverse possession case to the Supreme Court, ruling the legal issue was already settled.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Mombasa (Visram, Karanja & Koome, JJ.A) on an application for leave to appeal to the Supreme Court against the Court of Appeal's judgment of 17th June 2016 in Civil Appeal No. 84 of 2015. The underlying dispute concerned Parcel No. 148/V/MN in Changamwe, Mombasa, which the applicant inherited under a grant of probate; the respondents claimed the land by adverse possession, and both the Environment and Land Court and the Court of Appeal had ruled in their favour, dismissing the applicant's claim for vacant possession. The applicant sought certification that the intended appeal raised matters of general public importance under Article 163(4)(b) of the Constitution, arguing that land ownership decisions are inherently of public importance and that the courts below had adopted a restrictive interpretation of Article 40(2) of the Constitution and Section 28(1)(h) of the Land Registration Act. The Court framed two issues: whether it could extend time for filing a notice of appeal in the Supreme Court, and whether certification was warranted. It held that only the Supreme Court, under Rule 53 of the Supreme Court Rules, can enlarge such time. On certification, applying the Hermanus principles as summarised in Town Council of Awendo and following the Supreme Court's decision in Malcolm Bell, it found that the adverse-possession question was settled law and did not transcend the case. The application was dismissed with costs to the respondents.

Key legal issues

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01

Jurisdiction of the Court of Appeal to extend time for filing a notice of appeal in the Supreme Court

Holding

The Court of Appeal lacks jurisdiction to extend time set by the Supreme Court Rules; that power vests exclusively in the Supreme Court under Rule 53.

Reasoning

The delay explanation was made only from the bar and was unsupported. More fundamentally, the Court reasoned that time limits for filing a notice of appeal in the Supreme Court are set by the Supreme Court Rules, and the Court of Appeal's power under Rule 4 of the Court of Appeal Rules extends only time limited by its own Rules or a decision of the Court or a superior court, not time fixed by the Supreme Court Rules.

p. 3
02

Whether the intended appeal raises a matter of general public importance under Article 163(4)(b)

Holding

It does not. The question whether the applicant's title was extinguished by adverse possession is settled law, applies the Hermanus principles, and follows Malcolm Bell in holding that adverse-possession questions are not matters of general public importance.

Reasoning

Applying the principles in Hermanus Phillipus Steyn as summarised in Town Council of Awendo, the applicant failed to show an issue transcending the particular case with a significant bearing on public interest. The Supreme Court in Malcolm Bell had already held that adverse-possession questions are straightforward issues resolvable by the superior courts and fall outside the profile of a matter of general public importance. The applicant's grounds merely restated grievances with the merits.

p. 4

Legal principles established

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  • The Court of Appeal has no jurisdiction to extend time limited by the Supreme Court Rules for filing a notice of appeal; only the Supreme Court, under Rule 53 of the Supreme Court Rules, may enlarge such time.
  • On an application for leave to appeal to the Supreme Court, the test is not whether the Court of Appeal's decision is right or wrong, but whether the intended appeal raises a matter of general public importance.
  • Whether title is extinguished by adverse possession is settled law and does not, by itself, constitute a matter of general public importance warranting appeal to the Supreme Court.

Court orders

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  1. 1.The application for leave to file an appeal in the Supreme Court is dismissed.
  2. 2.Costs of the application awarded to the respondents.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 163(4)(b)
  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 40(2)
  • Supreme Court ActSections 15 & 16
  • Supreme Court RulesRules 24(1), 31(2) & 53
  • Appellate Jurisdiction ActSections 3A & 3B
  • Court of Appeal RulesRules 1, 4, 42, 43 & 47
  • Land Registration ActSection 28(1)(h)

Cases cited (5)

  • Hermanus Phillipus Steyn vs. Giovanni Gnecchi-Ruscone
    [2013] eKLR
  • Malcolm Bell vs. Daniel Toroitich Arap Moi & another
    [2013] eKLR
  • Town Council of Awendo v Nelson Oduor Onyango & 13 others
    [2014] eKLR
  • Joreth Limited vs. Patrick Magu Mwangi Kimunyu
    [2015] eKLR
  • Loise Kaguu Munge vs. Wakaria Mboi Njaramwe & another
    [2014] eKLR
On appeal from
Court of Appeal at Mombasa
Civil Appeal No. 84 of 2015
Jurisdiction invoked
Sections 15 & 16 of the Supreme Court Act, Rules 24(1) & 31(2) of the Supreme Court Rules, Sections 3A & 3B of the Appellate Jurisdiction Act and Rules 1, 42, 43 & 47 of the Court of Appeal Rules; certification under Article 163(4)(b) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Alfeen Mehdi Mohamed v Basil Feroz Mohamed & 223 others [2017] KECA 302 (KLR)", Case Analysis (2017). Civil Appeal (Application) No. 84 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/302/eng@2017-09-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.